by Bryce Edwards

13 February 2009

Axing the electoral & political finance review

Alongside axing the awful Electoral Finance Act (EFA), the new National Government has also axed the supposedly more credible electoral and political finance review, which included a so-called Expert Panel and Citizens’ Forum. This blog post examines what was behind the review, and why the exercise was always going to be more about window dressing than democracy. Although expert panels and citizens’ forums are not without merit, when compared to similar exercises carried out elsewhere, the planned Labour-Green model for New Zealand was designed to be incredibly weak and undemocratic. What’s more the process by which it was brought about was just as poor as the one that produced the EFA. The National Party campaigned on axing both of these, and is now well within its right to do that. [Read more below]

A sham cover for poor process

In a cynical strategic move, just weeks from the 2008 general election, the Labour Government announced the establishment of a $4.6m faux-consultative process to deal with contentious political finance issues. Coming so close to a general election, the actions of Labour (and the Greens) on this were transparently self-serving and disingenuous.

While there is indeed something to be said for such consultative measures, the process and nature behind this one makes it particularly problematic. For Labour, the review was plainly a sop to the Greens, but also designed to give Labour’s election campaigners a response to the inevitable criticism they knew Labour would incur for the EFA on the 2008 campaign trail. By implementing the review, campaigning MPs were able to say the Labour had always envisaged a post-election review to ‘iron out’ problems with the new law.

The Greens also used the promise of some sort of ‘independent’ review as a strategic tool from early on as a way of batting away any criticisms of the Electoral Finance Act. Whenever problems with the EFA arose, Green leaders – especially Russel Norman – batted these away saying such issues were merely ‘an issue to be dealt with by the independent review of electoral issues’.

A neutered review process

The Greens strategy on political finance reform entirely backfired in 2007, and the party has had to face up to the public derision – especially because the Greens were complicit in such an appalling and anti-democratic process. For the Greens their advocacy of the review was a cynical attempt to avoid apologizing for the damage done. But worse, the whole Citizens’ Forum was actually also quite a con.

The Greens and Labour were sure to make the Citizens’ Forum a very neutered exercise and body. This corresponds with the general reluctance in recent times of those two parties to give the public much control or influence over political finance matters.

For a start, the review exercise was never actually going to look at the EFA – this was one of the biggest myths about the electoral and political finance review. The terms of reference were written to include the statement that the process would ‘review electoral issues not included in the Electoral Finance Act’. Statements followed this from Annette King that made it clear that Labour was not considering fundamental changes to the Electoral Finance Act, but rather 'outstanding electoral issues'. In fact the Labour Government made a conscious decision to reject any idea that the review process would be allowed to ‘review all electoral law’. There was a strong emphasis on the review simply ironing out or providing additional elements to the EFA. So despite claims of some, like No Right Turn, that the process was a ‘full review’ of electoral law, the opposite was the case.

Second, rather than having any teeth or real power, the review was designed to be purely advisory. For example, the Citizens’ Forum was merely given the task to produce a report for the Expert Panel to read. Such a report ‘may’ then have helped inform the report that the Expert Panel was going to write. And even then, this final report was also merely advisory, and the terms of reference stated that the Minister was then able to choose to accept any elements of it or reject it entirely. (And as we saw with other expert advice tendered to Labour and Greens – such as the Human Rights Commission, Law Commission on the EFA – if it’s not ‘the right advice’ it can be easily brushed aside.)

Compare this to the British Columbia example where a citizens’ forum was established to look at the voting system. In this case, the established rules of the citizen forum said that ‘If the Assembly recommended a system different from the current system, its recommendation would be placed on the ballot at the next provincial election as a referendum item’ (Snider, 2008). The widely-referred to Ontario citizens’ forum had similar powers.

It seems that in vast contrast to the New Zealand proposed citizen forum the British Columbia Liberal Party Government, led by Gordon Campbell, decided to give the citizen forum real power to affect change. This was despite the fact that it was obviously ‘a strong possibility the citizens assembly would come up with a referendum item harmful to the interests of the Liberal Party—a risk Campbell was evidently willing to take’ (Snider, 2008).

The subservient role of the Citizens’ Forum

Despite all the Green and Labour cries about ‘handing the power over to citizens’ to determine electoral laws, the Citizens’ Forum was designed to be totally subservient to the Government-appointed Expert Panel.

Essentially, the Citizens’ Forum was to have no role in making recommendations to either the public or the Government. Instead, any outcomes from the Citizens’ Forum would be filtered through the Expert Panel. The official terms of reference made it very clear that it was the Expert Panel body that was to come up with the proposals and options for any change, then educate the Citizens’ Forum on these, and then merely ‘consider the report of the Citizens’ Forum’ while making their own decisions.

And right from the start, the Expert Panel was being developed and promoted as some sort of rarified body. The name, Expert Panel, wasn’t just its nickname, but it’s official title – again stressing the superior role of the Expert Panel over the Citizens’ Forum. Such words obviously have consequences for power relationships. In contrast, it’s noteworthy that in Ontario, the so-called experts went by the name of ‘the Secretariat’, and in British Columbia they were just ‘the staff’.

This situation was clearly quite some distance from what the Greens’ Metiria Turei presented it as, when she said in Parliament that the Expert Panel ‘would do a great deal of work preparing information and support systems for the Citizens’ Assembly’.

Much of the Government’s propaganda also tried to obscure the neutered nature of the Citizens’ Forum. The Labour blog ‘08 Wire’ attempted to sell the exercise by incorrectly describing the subservience around the wrong way: ‘the expert panel’s role is basically to do a lot of the (very important) donkey work for the Citizens’ Forum, while the Citizens’ Forum makes all the big decisions’.

But the terms of reference were very clear, and Panel Chair Assoc Prof Andrew Geddis was very unambiguous, saying that the Expert Panel would set the work programme for the Citizens’ Forum. And the Minister, Annette King said the Expert Panel and Citizens' Forum would only provide an independent, non-political ‘perspective’ on the reform options.

The Labour Government even developed a website for the Expert Panel at the highly-rarified URL address of: www.expertpanel.govt.nz (now deleted). Clearly the Government had decided to milk for as much as they could the concept that Labour was letting the brightest and best independent thinkers decide upon political finance and electoral law. However, clearer heads must have prevailed, because eventually the URL used was the more neutral www.electoralreview.govt.nz

Sham public consultation

Not only was the whole Labour and Greens process for the review rather disingenuous, but there was also a significant democratic deficit in their review proposal. While citizens’ forums are an interesting and worthwhile experiment in public participation, they do have some serious limitations. It’s very easy to sell the citizens forums on a populist and anti-party basis – and the Greens have perfected this line – but unlike party-based elections based on parties putting their ideas up for public consideration – or even holding public referendums – citizens’ forums can actually operate as a mechanism for removing a contentious issue from the public domain – and thus reducing public input. Also, the propensity for these exercises to be manipulated and marginalized is also a concern. One British Columbia citizen expressed the related this problem:

My concern about the Citizens' Assembly is that it may be an expensive piece of window dressing, yet another one of those carefully guided sham consultations with the great unwashed public to simply avoid the charge that the public haven't been consulted.

Such a comment would have been even more apt in the New Zealand case.

One academic comparative analysis of citizen forums was critical of the fact that the process involved the fact that over 90% of those invited to participate actually turn down the offer:

I would posit that the selection process for the citizens assembly minipublic is a significant democratic deficit. In the three citizens assemblies so far—British Columbia, Ontario, and the Netherlands—the yield, the % of people willing to commit roughly a year of their lives to become citizens assembly members, has been in the 6% to 8% range. In my opinion, that is inadequate for a public body that is supposed to attain much of its democratic legitimacy by being statistically representative of the public (Snider, 2008).

Snider also noted with interest that despite only 7% participation rate, there is no effort made to collect data on why the other 93% choose not to serve on the citizens’ forums (Snider, 2008).

A further problem with the model set up in New Zealand by the Greens and Labour was the fact that the Citizens’ Forum was only going to pertain to the second stage of the review process. This meant that there would be no citizen input into the first stage Review of Electoral Agencies. Yet this is also a vital issue. It deals with how violations of electoral law should be dealt with. This isn’t a technical or boring issue – but one that is the centre of the controversies about parties and politicians allegedly violating the electoral laws but not being prosecuted.

Making political finance a partisan and politicized issue

Clearly, since 2005 the Labour and Green parties have taken the vital issue of political finance and electoral law and tried to politicize it for partisan advantage. By arrogantly assuming that they possessed the moral high ground, these parties claimed the right to change the electoral rules. This is fine – essentially it’s ‘victor’s law’ – the baubles of power. But they shouldn’t have turned around and pretended otherwise. And they shouldn’t have pretended that this is a basis on which to build enduring and robust policy and law.

It was therefore not surprising that the Greens tried to fast track the review process to start and be set up before the election, so that National wouldn’t be able to influence it. It was reported that ‘Russel Norman said the party wanted the [Citizens’ Forum] assembly running before the election so it was harder to derail if there was a change of government’ (Trevett, 5 June 2008).

Time delay

Originally the Greens suggested the process cold be completed in 2008. Then, when the Government announced the review in Parliament it said the panel would be appointed and would report back by December 2008. The timeframe then drifted badly. It was then supposed to be announced in January 2008 and completely finished by the end of April 2009. No reason given for delays, and all Official Information Act requests were denied on basis of ‘legal professional privilege’ and ‘confidentiality of advice’ – indicating a lack of transparency that aptly characterized the whole approach of Labour and the Greens.

Finally the Expert Panel and Citizens’ Forum review was announced in September 2008, and given until October 2009 – an incredibly short period of time, especially for the Citizens’ Forum which was only allowed about six months to deliberate. This is a very short timeframe for a citizens’ forum. In contrast, in British Columbia, ‘The Assembly deliberated for close to a year before making its recommendation. The deliberations occurred from January through November 2004, with the referendum in May 2005’ (Snider, 2008).

It was actually the organization of Transparency International (TI) that first suggested the devise of an independent body to review political finance rules. In late 2006, TI wrote to all the political parties suggesting ‘the establishment of an independent body to address this issue and draw up the first draft of a proposed reform’ (McGhie, April 20, 2007). TI stressed that this part of the process was ‘urgent’, so it was interesting to see the Greens and Labour take over two years to follow this advice – but they obviously decided to try and include it as an add-on after the fact. Such an approach would have made sense at that early stage of the policymaking cycle, but instead appeared to be nothing more than a cynical self-justifying action.

Appointing the panel

In appointing the so-called Expert Panel, the Government and Greens showed that they learnt nothing from the awful EFA process. Obviously, the question of ‘Who gets to appoint the independent panel and set the terms of reference’ would be vital, yet it was stitched up behind closed doors. There were no calls for nominations from the public, and no discussions with other political parties (although the Greens had a strong backroom role in determining who to appoint).

The pronouncement from Norman that ‘The idea was that the expert panel would be independent and widely respected individuals’ became rather laughable. How could he expect to convince people of the independence of the panel when it was chosen expressly and deliberately without the involvement of all the other parties? There was absolutely no attempt to involve the public or other stakeholders. This read like bad faith on the part of the Greens and Labour.

Some EFA supporters attempted to defend the partisan nature of the panel selection, suggesting that ‘this just isn't a "significant" appointment. It's a review panel, not a top public sector job or ambassadorship...)’. See: No Right Turn. But as John Armstrong wrote, it was actually supposed to be ‘a major and (for New Zealand) unique public consultation exercise’ (September 9, 2008).

State funding

One of the biggest cons of the sham process was the fine print in the terms of reference, which specifically excluded the Citizens’ Forum from examining the current parliamentary funding of political parties. This is, of course, exactly the area of political finance in New Zealand that is most obscured, most influential on the parties, and most negative for the party system.

Yet it is precisely this area that Labour and the Greens don’t want the public (or even the experts) sticking their noses into. For if the public knew just how much of this funding was misused for party political purposes – the Auditor General’s 2006 report only dealt with the tip of the iceberg – then the biggest source of funding might be reformed or cut off. As the Herald said in late 2008, ‘Taxpayers already finance most of the activities of parties in Parliament, giving them too much advantage over those not already in the House. The supposed advantages conferred by private wealth are trifling in comparison’.

National being handed the democratic mantle

That the so-called parties of the left have allowed National to be handed the democratic mantle in this debate will be confusing and irritating for many on the left. Throughout the EFA debate, National have been able to pose as the party of principle, etc. They’ve said that the replacement law should be based on the recommendations of a Royal Commission of inquiry, or a review of similar status. David Farrar of Kiwiblog even ‘out-democracied’ the Greens and Labour by calling for a much more consultative Citizens’ Forum to be established as part of any future National-led government. For many of us on the left, it’s a sad day when it’s the National Party that comes out as the party of democracy and deeper consultation.

Perhaps National has learnt the democratic lesson of the 1980s and 1990s – one of the most powerful issues in politics is the adherence to the political culture of the democracy. The economic reforms of the 1980s and early 1990s weren’t only such an upheaval simply because they were extreme, punitive and unpopular, but because they violated New Zealand’s sense of political culture. This was about governments implementing a blitzkrieg of reform without respect for the commitments they gave to the electorate – without a mandate or proper adherence to consulting with the public. This is what produced the huge dissatisfaction with politics, politicians and political parties – which eventually led to MMP. The EFA and political finance reforms have quickly turned into one of the biggest and most contentious political issues in a long time – partly in parallel to the way that the neoliberal reforms were pushed upon the country because the politicians arrogantly assumed that they knew best and needn’t consult or get a mandate for them.

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Axing the electoral & political finance review

Alongside axing the awful Electoral Finance Act (EFA), the new National Government has also axed the supposedly more credible electoral and political finance review, which included a so-called Expert Panel and Citizens’ Forum. This blog post examines what was behind the review, and why the exercise was always going to be more about window dressing than democracy. Although expert panels and citizens’ forums are not without merit, when compared to similar exercises carried out elsewhere, the planned Labour-Green model for New Zealand was designed to be incredibly weak and undemocratic. What’s more the process by which it was brought about was just as poor as the one that produced the EFA. The National Party campaigned on axing both of these, and is now well within its right to do that. [Read more below]